One compelling study explored the split between those who oppose and back gun control. It suggests the divide goes even deeper than political ideology, religion, region, or race. What matters is what people fear: are citizens more afraid of gun violence or of being exposed to a predator without the ability to protect themselves? The way people perceive that risk flows from basic worldview. Those who are fiercely individualist, or who are especially imbued with respect for authority (including the military), are more likely to oppose gun restrictions. Those who tend to think more in terms of community, support them. “Whether one is hierarchical or egalitarian, individualistic or solidaristic . . . matters more than whether one is Republican or Democrat, conservative or liberal.”
The Supreme Court’s decision to enshrine the individual rights interpretation of the Second Amendment can only worsen that polarization.
Second Amendment fundamentalism rests powerfully on the idea that an empowered individual—armed to protect himself (gender definitely intended) and his family—is the morally virtuous way to live. It is not just that people cannot rely on police to protect them; it would be worse if they could.
That explains why, to many city dwellers, the reaction of gun rights leaders so often seems so bizarre, even apocalyptic. Wayne LaPierre feverishly explained that all Americans must be armed. “After Hurricane Sandy, we saw the hellish world that the gun prohibitionists see as their utopia,” he wrote. “Looters ran wild in south Brooklyn. There was no food, water or electricity. And if you wanted to walk several miles to get supplies, you better get back before dark, or you might not get home at all.” LaPierre’s version of the hurricane mystified those who lived through it. Coney Island was unusually peaceful: there were no murders, no rapes, and no shootings that week, according to the New York City Police Department.
When LaPierre first spoke out after Sandy Hook, his approach flabbergasted many. In a nationally televised statement, many expected him to mouth words of contrition, to vow to “work together” and seek reconciliation. “The only way to stop a monster from killing our kids is to be personally involved and invested in a plan of absolute protection,” he declared angrily. “The only thing that stops a bad guy with a gun is a good guy with a gun.” He proposed an armed guard in every elementary school. To many unfamiliar with the language of gun rights, this was simply an astounding change of subject. The New York Daily News blared, THE CRAZIEST MAN ON EARTH. The conservative New York Post front page wood read: NRA LOON IN BIZARRE RANT OVER NEWTOWN. It painted what many regard as a grim and dystopian world of mutual, armed suspicion. To LaPierre and others, it was simply a logical extension of their worldview. To them the “Standard Model” of individual gun bearing, drawing on pre-colonial history, has utter, continued relevance in our interdependent, wired, densely populated world.
And it echoed the language and arguments of the majority opinion in Heller: its talk of individual protection, of self-defense. Gun issues already are polarized, values laden, driven by cultural notions of right and wrong rather than what works. The Supreme Court’s rulings are likely to make that values-driven polarization only worse. When the Court speaks, its words echo not only in marble halls and courtrooms. Given its enormous prestige, it provides validation and momentum in the political realm, too. When an opinion is accepted and embraced, that legitimacy extends. Gun rights supporters may have enshrined their constitutional approach at their moment of peak political power. Given long-term demographic trends, their power may recede. But constitutional doctrine can prove harder to dislodge than temporary legislative majorities. As a legal matter, Heller may create space for reasonable gun regulation. As a matter of politics and culture, though, it can only deepen polarization. Whereas once gun debates turned on hunting or street crime, now it almost instantly reverts to evocations of hallowed constitutional rights. So while gun debates need not devolve into a tired argument over Second Amendment absolutes, there are all too many reasons to think they will.
CONCLUSION
“The Right of the People”
In the story of the Second Amendment we learn much about our country, our Constitution, and how we read it—and live it. Three major lessons emerge.
The first touches on the way we read the Constitution: simply, originalism is untenable. Antonin Scalia called Heller the “vindication” of the theory. In fact, it displays the limitations of trying to answer today’s questions by consulting the oracles of the past.
After all, the world of the Second Amendment is unrecognizable: a world where every white American man served in the military for his entire adult life, where those citizen soldiers bought their own military weapons and stored them at home, and where the idea of a United States Army would be enough to send patriots to grab their musket. When the militias evaporated, so did the original meaning of the Second Amendment.
As for the Fourteenth Amendment, which pointed more firmly toward an individual right, that, too, comes from a strikingly different moment: a time of armed guerrilla war between the races. We can and do learn from the majestic generality of the amendment’s vision of equality—but the notion of personal safety guaranteed only by a gun in every hand, drawn to fend off the marauding Klan, happily is past, too.
• • •
In all the ways that help us understand the role of guns, twenty-first-century America differs profoundly from the time of the Framers. Weapons are far more destructive (a point acknowledged by the most thoughtful gun rights adherents). Americans live in dense urban environments, where violence can cascade out of control. Murders, suicide, robbery, all are more widespread today than in 1789. Today, we rely on professionalized police departments to protect us from crime and unrest, and a United States Army to protect us from overseas threats—all institutions unknown to the Founders. The idea that we should arm the population so they could mount an insurrection against the government, just in case, seems absurd. Sadly, the sense of civic duty that impelled Americans to bear arms for their country is largely a thing of the past, too.
In this new era, Americans built an approach to guns and gun violence. Guns are more plentiful than elsewhere. But we have always had gun regulations and strong criminal laws, too. What we did not have was a regime of judicially enforced individual rights, able to trump the public good—and the encroaching decoupling of rights and responsibility. Debates about what to do, about how to strike that balance, rested above all on what was good for Americans here and now. We did not make gun policy based on half-remembered history or sentimentalized notions of personal empowerment.
These tangled threads suggest a second lesson, this one for the courts: the importance of judicial restraint.
As Americans, we take for granted the notion that a paragraph cobbled together over two centuries ago, for reasons historians debate fiercely, would constrain how society protects itself today. Alone among major democracies, we eagerly shoo political and policy questions into the courtroom. That has long been true. (Back in 1835, Alexis de Tocqueville observed, “There is almost no political question in the United States that does not sooner or later resolve itself into a judicial question.”) Our system has evolved to give the Supreme Court ultimate authority over vast areas of policy and everyday life. Yet the Supreme Court by its nature is a political institution. Appointed by partisan politicians, forced to interpret vague constitutional phrases, the justices inevitably make political choices. For all those reasons, the Court husbands its democratic legitimacy when it steps carefully into political realms.
Once it was progressives who urged judicial restraint. Then conservatives embraced it. Now they giddily slice through sheaths of statute books. Heller, Citizens United, Shelby County likely are just the start (unless Court personnel changes). And despite confirmation hearing bromides, judges are increasingly willing to overturn the laws enacted by generations of democratically elected politicians. A too easy recourse to rights language, the decoupling of rights from responsibilities, and the turn to the courts as the f
irst resort all have consequences.
This seems profoundly mistaken. The Court’s current five-vote majority—all chosen by Republican presidents, even as Democrats have won most recent presidential elections—have chosen to interpose the Court as a bulwark against longer and larger social trends. The rising electorate wants a stronger government; the Court increasingly insists on a smaller one. Heller was an outlier: its methodology was suspect, but its result was popular. But the train of other, even bolder decisions risks a backlash as potent as the one against liberal decisions after the 1960s.
Perhaps conservative overreach will remind left and right that in our constitutional system, it is far better for fundamental questions to be resolved, if at all possible, by the push-and-pull of politics.
That is especially true when it comes to gun violence. This is a remarkably dense and thorny issue. The controversy is thick with symbolic politics. It pits rural culture against urban norms. It asks us to avoid emotionalism, to rely more on research, to find policies that actually work. Efforts to enact sensible regulations of guns face many obstacles: powerful organizations, inflamed opponents, cowardly politicians, a media culture that (when not suffused with violence itself) quickly loses interest. To surmount these will require grit and wisdom. It should not have to require overcoming a hostile judiciary, misreading history, overinterpreting text, and imposing political views in the guise of judicial philosophy.
All of which suggests a third lesson, perhaps most fundamental: how the Supreme Court sees the Constitution is ultimately up to us. A full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers.
After all, the Framers added the Second Amendment to the Constitution not because they solemnly believed it necessary, but as a “tub to the whale”—a concession to popular discontent. From the beginning, American politics was marked by triangulation, compromise, tactical retreats. Fretful citizens have always been anxious about governmental overreach by Washington. (George Washington, not the city, not yet formed.) Even the Founders found it necessary to appease the Tea Party. Justice Roger Taney’s view of gun ownership as a white man’s “privilege” in Dred Scott was the product not of originalism but the rising Slave Power of the 1850s—and the story of the Fourteenth Amendment, in turn, is driven by the passion of the Radical Republicans and the freedmen who organized militias and governments after war’s end. And at every step of the way, the way we viewed gun rights was couched and conditioned by the way we saw government.
Does the Constitution today guarantee a right to bear arms? Chances are vanishingly small that Heller will be overturned. Gun control advocates do not seek that. They think it unnecessary. Taking at face value the caveats and conditions built into Scalia’s “I am not a nut” opinion, it ought to be possible to craft an effective regime of public safety while carefully stepping around newly erected judicial obstacles.
But the reason the Court has pronounced that limited right is not because the Framers of the Second Amendment intended it to confer it. (They didn’t.) Nor is it because of a dictionary from 1730, or a state court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved—the Constitution is living, as it were—and the widespread acceptance of some form of gun ownership is part of the way Americans think. Not then, now. Heller can be justified not as originalism, but as something more rooted in common sense: it reflected a popular consensus won by focused activists.
It is hardly surprising that the NRA—like myriad other social movements and pressure groups before—sought to bend the Constitution. Gun rights campaigners began with scholarship, moved on to persuading politicians and governmental bodies, began to test the law, and finally went to the High Court. By the time the case was brought before the justices, it fell like a ripe apple. This model for legal change earlier had been developed by advocates for civil rights, women’s equality, worker and consumer protection, all causes traditionally identified with the left.
Today’s progressives and gun control advocates have much to learn from the NRA’s history, and their own. Popular constitutionalism cannot be just a theory of interpretation. It must be what they do. They will have to enlist historians and legal scholars, for example, to make the case for gun regulations under the new, history-driven regime. They will need to scrape together social science research to help new laws stand up in court. They will have to wage a far more aggressive effort than before to win elections and win over lawmakers. The rise of new groups such as Mayors Against Illegal Guns and Americans for Responsible Solutions offers a chance for greater professionalism and impact.
And just as conservatives and the NRA have focused on changing the public’s opinion on gun rights, progressive advocates must focus with equal intensity on changing the public mind. Oddly, many seem reluctant to do so. Lawyers fill the ranks of progressive leadership like an overstuffed briefcase. The last two Democratic presidents were lawyers (Yale, Harvard). By contrast, the last Republican president with a law degree left office in 1977. In years past, so many of the great victories for liberalism were won in the courtroom. But persuading the public, waging a broad campaign to shift the terrain of debate, is not an alternative to a legal strategy. This approach goes to the heart of legal change, every bit as much as the most skilled legal brief. Debating slavery and an earlier Court decision, Abraham Lincoln said, “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”
And over the longer term, a progressive vision of the Constitution must challenge the primacy of originalism.
Some liberals, reeling from defeat, argue that originalism is right—but that modern conservatives just pick the parts of the past they want to revere. But what makes us think that the Framers wanted us to read their words, their misplaced commas, as if they were Scripture? Too often, when liberals insist that they are the real originalists, their protestations can feel too strained, too cute by half. One gets a whiff of the sense that they think originalism is a clever piece of political jujitsu rather than the way a strong nation should govern itself.
A frank acknowledgment of the power of the living Constitution has its appeal. After all, the country made itself stronger, more egalitarian, more effective in the world precisely during the mid-twentieth-century period when jurists were most willing to seek meaning in the spirit but not the letter of the Constitution. A living Constitution does not discard the spirit of the document, but seeks to apply its timeless principles to modern challenges that could not have been imagined by the Framers or their contemporaries. It reflects with frankness that our sense of human dignity has, in fact, evolved. Wide public acceptance of same sex marriage is only the latest evidence of evolution upward, one hard to square with what would have been plausible for the Founders. Some sophisticated progressives have sought to square the circle. Jack Balkin, a Yale professor and the author of an influential blog, has argued for a “living originalism,” recognizing that the Framers drafted a document designed to be broadly interpreted by future generations.
But the strength of the conservative vision of originalism has never solely been in its “Eureka!” pretension that it has at long last discovered the hidden key to the Constitution. The justices did not choose conservatism because they were originalists; they chose originalism because they were conservatives. (It did not hurt that arguing for the infallibility of ancient texts appeals to a broad segment of the public in its religious and spiritual life as well as in its constitutional dogma.)
Ultimately, we must fight for a Constitution that is imbued with a powerful set of values. Justice Stephen Breyer has offered the most compelling approach. He argues that the Constitution is best understood as
a charter for a vibrant, self-governing democracy. The structural integrity of our system, at times, must trump a narrow reading of any particular right. That frame, applied (as he did) to guns, would suggest strongly that the courts are the wrong branch of government to parse the costs and benefits of greater regulation.
We can draw inspiration from perhaps the least debated phrase in the Second Amendment. Least debated, but perhaps most important. “The right of the people.” Put aside the tendentious dialogue over whether that conferred an individual right to own a gun. It surely also referred to the people as a political community—the militia of all the people, as we are constantly reminded. Those people today grapple with complex issues of violence and social order through the democratic process. Some may wince at the NRA’s power to pass legislation, just as others may grimace at new gun laws. But those fights take place in public, in legislatures, online, in the media, in the realm of political organizing and the ballot box. When the courts intrude—to rewrite and rewire public policies in service to a particular constitutional theory or ideological approach—they can do damage to our democracy and the law. When they stand by to prudently intervene on behalf of those who need their protection, and who cannot get it through the normal political processes, courts immeasurably strengthen the country. Conservatives argued that for years; liberals are learning it again.
We can be true to the spirit of the Constitution and the animating forces behind the Second Amendment if we understand that above all else, whenever possible, the ability to make and set gun and other policies through the messy, imperfect democratic process is the ultimate “right of the people.”
The Second Amendment Page 19